On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-03-0524-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 21, 2010
Before Judges Payne and C.L. Miniman.
Defendants Desmond Smith (Smith) and Lakeema Marando (Lakeema)*fn2 appeal their convictions of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1), and false imprisonment, contrary to N.J.S.A. 2C:13-3, a disorderly persons offense. Lakeema also appeals her conviction for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-2b(2)(A), as a lesser-included offense to the armed-robbery charge in the indictment. Smith was sentenced to fifteen years in prison on an extended term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 for the aggravated assaults, and six months concurrent for the false imprisonment. Lakeema was sentenced to eight years in prison subject to NERA for the aggravated assault, four concurrent years for the theft, and six concurrent months for the false imprisonment. Various fines and penalties were imposed on both defendants. We now affirm in all respects.
In September 2006, Dennis Marando (Dennis) lived with his wife Lakeema in Jersey City, New Jersey. Zyanaitha Denard, Lakeema's friend, and Johnny Robertson, Lakeema's cousin, also lived with the Marandos at that time. On September 4, 2006, Dennis was visiting friends in Pennsylvania until approximately 9:00 p.m., at which time he left the Poconos area and drove home to Jersey City, arriving at approximately 10:30 p.m. He intended to pick up some personal items because he was having problems with Denard and Robertson, and he had decided to separate from his wife and vacate the apartment.
Upon arriving at the apartment, Dennis testified that he attempted to call his friends in the Poconos to inform them he arrived home. When he picked up the phone, Denard grabbed it, unplugged it, and threw it at a window. He testified that while Denard was asking him why he was leaving Lakeema, Robertson and Desmond Smith entered the room. Robertson then allegedly said to Dennis, "'You thought you could get away with this. But I think now we got you.'" Dennis testified that the threats continued, culminating with Denard telling Lakeema via a cell phone call that "'We got Dennis here.'" Lakeema allegedly responded, "'Don't let Dennis leave. Don't let him leave until I get there.'" Denard then took Dennis into the bathroom and began questioning him about his separation from Lakeema. Robertson and Smith remained outside the bathroom, where, according to Dennis, they said they "'can't let him out until Keema gets here.'"
Lakeema arrived after Dennis had been in the bathroom for about ten minutes. Dennis said she was "mad" and "angry" and would not let him say anything. Dennis testified that Lakeema first accused him of unspecified conduct, uttering profanities, and then began "punching [him] in [his] face, all over." Denard was still in the bathroom at this time, and Robertson and Smith were attempting to enter. During the struggle, Lakeema demanded $1500 from Dennis; he told her that "it was impossible to do that at that time."
Robertson and Smith then entered the bathroom, and the light was turned off. Dennis testified that "everyone was trying to hit me. I couldn't tell who was hitting me, but I could feel the blows coming from all sides." He was punched in his right eye, which started bleeding. Lakeema said she did not care what happened to Dennis, and Robertson allegedly said, "Why can't we just smoke this nigger and forget about the whole thing?" Dennis could not estimate the number of blows he received and never indicated to police that four individuals assaulted him. He remembered his wife saying to hit him in his bad eye, on which a cornea transplant had previously been performed. He eventually pushed his way out of the bathroom and went outside.
Once outside, Dennis got into the passenger side of his car, and Lakeema, because she had the car keys, got into the driver's seat. Dennis asked Lakeema to take him to the hospital; she responded by saying, "I don't care. That's your problem now." An ambulance then arrived; however, when asked if anyone called for an ambulance, Lakeema responded, "No," and the ambulance left. Dennis did not try to get the ambulance driver's attention.
Dennis then offered to give his assailants the money, and they drove to a local automatic teller machine (ATM). Once they arrived, everyone began looking for his ATM card, which Dennis said was in his jacket in the car trunk. Dennis then ran away from the car toward a Walgreen's, where he informed a security guard that he had been assaulted. After that, he saw a police car pull into a gas station across the street; he informed the police officer about what had transpired and told him that his assailants were in his car. The police officer called an ambulance, and Dennis received medical attention at Jersey City Medical Center (JCMC). He had surgery the next morning to treat the injuries to his right eye, which included a ruptured globe through the cornea and evisceration of the contents of his eye. He underwent a second surgery on the eye on December 13, 2006. Dennis remained blind in his right eye at the time of trial.
In the early morning hours of September 5, 2006, Officer Charles Taveras of the Jersey City Police Department effected a traffic stop of a car matching the description Dennis gave to the police. The car contained Lakeema, Denard, Smith, and Robertson. The four individuals were taken into custody and transported to JCMC to be identified by Dennis. Dennis positively identified them one at a time, and they were then taken to the police station. Lakeema, Smith, Robertson, and Denard were subsequently indicted on charges stemming from this incident. These appeals followed the entry of judgments of conviction.
Smith presents the following issues for our consideration:
POINT I -- THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT II -- THE TRIAL COURT INSTRUCTED THE JURY WITH AN INCORRECT ACCOMPLICE LIABLITY CHARGE.
POINT III -- THE SENTENCING COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM.
Lakeema presents the following issues for our consideration:
POINT I -- DEFENDANT, LAKEEMA MARANDO'S, CONVICTION SHOULD BE REVERSED SINCE THE PROSECUTOR'S ACTIONS THROUGHOUT THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT INCLUDING INTENTIONALLY MAKING INFLAMMATORY PREJUDICIAL REMARKS IN CLOSING ARGUMENT, PLACING INADMISSIBLE EVIDENCE BEFORE [THE JURY] AND MAKING ARGUMENTS SHIFTING THE BURDEN OF PROOF THEREBY DENYING DEFENDANT A FAIR TRIAL.
A. THE PROSECUTOR MADE OUTRAGEOUS REMARKS IN HIS CLOSING ARGUMENT WHICH WERE MADE CLEARLY WITH THE SOLE PURPOSE TO INFLAME THE JURY, AND/OR SHIFT THE BURDEN OF PROOF REQUIRING THE COURT TO ADMONISH HIM AND PROVIDE SUPPLEMENTAL CHARGES TO THE JURY.
B. THE PROSECUTOR MADE NUMEROUS COMMENTS DESIGNED TO SHIFT THE BURDEN OF PROOF FROM THE STATE TO DEFENDANTS, AND ELICITED IRRELEVANT INFLAMMATORY EVIDENCE AND/OR MIS-STATED THE LAW (WHICH WAS NOT CORRECTED BY THE COURT).
C. THE STATE'S DESTRUCTION OF EVIDENCE AND/OR FAILURE TO PROVIDE DISCOVERY DEPRIVED DEFENDANT OF [HER] DUE RIGHT PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, SEC. 1, 9 & 10).
POINT II -- DEFENDANT, LAKEEMA MARANDO'S, CONVICTION SHOULD BE REVERSED SINCE THE TRIAL COURT'S CHARGE WAS INADEQUATE AND CONFUSING THEREBY DEPRIVING DEFENDANT OF [HER] DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, [¶¶] 9, 10).
POINT III -- THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE [AND] IS BASED UPON AN INCORRECT ANALYSIS OF AGGRAVATING AND MITIGATING FACTORS.
We will first address the concerns respecting the actions of the prosecutor and will then address the motion for a judgment of acquittal, the charge to the jury, and the imposition of sentence. The scope of our review of each issue is described below.
Lakeema first challenges the prosecutor's conduct during trial, including several comments made during summation, the elicitation of certain testimony, and alleged errors in discovery. In assessing whether a prosecutor's alleged misconduct requires reversal, an appellate court should determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). In determining whether a defendant's right to a fair trial has been denied, the court should look at such factors as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken from the record, and whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322-23.
We review the denial of a motion for a judgment of acquittal by applying the same standard as binds the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Perez, 349 N.J. Super. 145, 151 (App. Div. 2002), rev'd on other grounds, 177 N.J. 540 (2003). That is, we determine "if the evidence is insufficient to warrant a conviction." R. 3:18-1. See also State v. Reyes, 50 N.J. 454, 458-59 (1967), where the Supreme Court observed:
More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
Next, when an appellant raises error in the jury charge, the charge must be read as a whole; the court will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). All that is necessary is that the entire charge be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). Where the defendant fails to object to the charge, a showing of plain error must be made when the defendant claims error on appeal.
R. 1:7-2; R. 2:10-2. Plain error is error "clearly capable of producing an unjust result." R. 2:10-2. In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969) (citation omitted), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). However, errors impacting directly on the court's obligation "to assure the jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions... are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).
Finally, the role of an appellate court in reviewing a sentence imposed by a trial judge is limited. State v. L.V., 410 N.J. Super. 90, 107 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010). The court only determines (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.
The "reviewing court may not substitute its own judgment for that of the sentencing court." Id. 493-94 (citing Roth, supra, 95 N.J. at 365). A judge who exercises discretion and complies with the sentencing principles will not be second guessed. Id. at 494 (citing Roth, supra, 95 N.J. at 365). Thus, the appellate court may modify a defendant's sentence when it is convinced the sentencing judge was "'clearly mistaken.'" L.V., supra, 410 N.J. Super. at 107 (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)). A judge is "clearly mistaken" where "the facts of th[e] case make the sentence clearly unreasonable so as to shock the judicial conscience." Ibid. (internal quotations and citations omitted).
Lakeema alone argues that she was denied a fair trial when the prosecutor made allegedly improper comments during summation. The first set of comments challenged on appeal reads:
MR. GONZALEZ: Counsel, Your Honor, ladies and gentlemen of the jury, it is what it is. It is what it is. Those were the words of Lakeema Marando after she and the three co-defendant[s], Zynaitha Denard, Desmond Smith and Johnny Robertson agreed that they would rob Dennis Marando at 12A Rose Avenue on September 4th, 2006.
They kept him in the apartment, kept him in his room and, then, led him unsuspectingly into the bathroom, under the pretense of having a conversation. Like an unsuspecting puppy dog at a shelter being taken to the euthanasia table. They led him --
MR. GUALANO: Objection, Judge.*fn3
THE COURT: Sustain to euthanasia table. Please the jury will disregard that statement. Let's concentrate on the facts here please.
MR. GONZALEZ: They led him into that room unsuspectingly, the pretense of talking.
Prior to that they had agreed through the phone that they were going to hold him there.
MR. GUALANO: Judge, I'm going to object. That's no where in the case.
THE COURT: Sustained, the jury will disregard. Your recollection of the evidence is what controls, sir -- ladies and gentlemen. ...